Chief Justice of Pakistan Yahya Afridi. Photo: Supreme Court of Pakistan/ File
ISLAMABAD:
Chief Justice of Pakistan Yahya Afridi has opposed the proposed transfer of five judges of the Islamabad High Court (IHC) to other high courts, warning that such a move could undermine judicial independence and set an unwanted precedent.
The development follows a motion by IHC Chief Justice Sardar Sarfraz Dogar, who sought a meeting of the Judicial Commission of Pakistan (JCP) to consider the transfers.
While CJP Afridi rejected the request to convene the meeting himself, the JCP secretary has nevertheless called a meeting on April 28 on the requisition of five commission members.
The IHC chief justice had proposed transfer of Justice Mohsin Akhtar Kiani to Lahore High Court (LHC), Justice Babar Sattar to Peshawar High Court (PHC), Justice Arbab M Tahir to Balochistan High Court (BHC), Justice Saman Rafat Imtiaz to Sindh High Court (SHC), and Justice Sindh So Khaomdim Hussain High Court.
JCP members are understood to be split on the proposals and it is unlikely that all five names will be approved. One member believes that three judges are likely to be transferred. Sources told The Express Pakinomist that a strong section in the government and the legal fraternity is against the transfer of Justice Khadim Hussain Soomro and Justice Arbab Tahir.
However, there appears to be less opposition to the proposed transfer of Justice Kiani and Justice Babar Sattar, while Justice Saman Rafat Imtiaz may also be moved to the Sindh High Court. These three judges signed a “famous letter” written to the Supreme Judicial Council seeking guidance on alleged interference by agencies in judicial functions.
Since the tenure of former CJP Qazi Faez Isa, judges in connection with this letter have allegedly been subjected to pressure in various ways.
Lawyers have also questioned why the name of Justice Sardar Ejaz Ishaq was not proposed to be transferred, despite him being a signatory to the same letter. Nor had he previously been in the good books of the executive or the chief justice of the IHC.
Senator Ali Zafar told The Express Pakinomist that he would attend the upcoming JCP meeting and support CJP Afridi’s stand on the matter. A senior lawyer said the opinion of the bar representatives would be decisive in shaping the outcome of the meeting.
Commenting on the Chief Justice’s stance, the lawyer said Afridi has consistently tried to project himself as a defender of judicial independence, but his past actions tell a different story.
He referred to Afridi’s support for the transfer of Justice Dogar from the LHC and his decisive vote to elevate Justice Aamer Farooq to the Supreme Court, a move that paved the way for Justice Dogar to become acting IHC Chief Justice.
The lawyer further argued that the weakening of the once independent Islamabad High Court did not happen by accident and held Afridi partially responsible. He also pointed to Afridi’s earlier support for the transfer of three judges to the IHC, which the chief justice had described as a “milestone”.
“Rejoice in what – the weakening of judicial independence?” asked the lawyer, adding that history would judge whether Afridi strengthened or weakened the judiciary.
Explaining his opposition, CJP Afridi said it would be inappropriate to convene the JCP meeting within 15 days under such circumstances, warning that allowing such transfers could normalize the treatment of judges as interchangeable.
“Such an approach would have serious consequences for the institutional integrity of the judiciary, while at the same time eroding public confidence in its independence and stability. More importantly, the proposed transfers, if allowed, would essentially assume a punitive nature vis-à-vis the transferred judges: a result that finds no sanction anywhere in the constitutional scheme for the superior, or anyone in the Constitution. The purpose of clause 200 of the Constitution and is against the fundamental principles of judicial independence and security of tenure,” CJP Afridi said.
He further noted that the requisition sought transfer of Justice Soomro, who had already been shifted from the Sindh High Court to the IHC in February 2025 under Article 200 to promote federalism and fair representation.
“Being the stated rationale for his original transfer, it is clear that this request is fundamentally incompatible with the very purpose that informed the transfers to the IHC in February 2025.”
CJP Afridi also warned that transfer of Justice Soomro and Justice Saman Rafat Imtiaz back to the Sindh High Court would leave Sindh without representation on the IHC bench, in violation of constitutional principles and the Islamabad High Court Act, 2010.
He further noted that the transfer of five out of nine IHC judges without reciprocal transfers from other courts would create vacancies, lead to uncertainty and erode public confidence.
“Fourth, it must also be noted that the present request for transfers is not accompanied by any articulated reasons or apparent institutional imperatives that would forcefully justify the same.
“In my considered view, where a request for transfer is not accompanied by any articulated reasons or apparent institutional necessity, as in the present case, it assumes in its effect and consequence a criminal character resulting in the de facto removal of a judge from office. Under the scheme of the Constitution, this approach cannot be sustained. The Constitution provides for a specific and exhaustive mechanism which may produce a specific and adverse consequence. Judge, including removal from office under Article 209, through proceedings before the Supreme Judicial Council.”
“A transfer which, by reason of its context, absence of justification, or criminal character, operates as a removal from office cannot be isolated from this constitutional mandate by the mere label affixed to it. To permit such a transfer would be to permit, in essence, what the Constitution expressly prohibits in the form: removal of a judge from office by a route other than that mandated in automobiles than that which is mandated. criminal in nature and results in effective removal, is therefore in direct conflict with the exclusive constitutional mechanism governing judicial accountability.” He added that if accountability was the underlying concern, it must be rigorously pursued through constitutional mechanisms rather than administrative measures.
“Accountability, if that is the underlying concern, must be pursued strictly within the constitutional framework; it cannot be promoted indirectly through administrative measures that in effect operate as punishment without recourse to constitutionally mandated due process”
